Frequently Asked Questions

Find answers to the most commonly asked questions for workplace investigations. Contact us if you can’t find answers to your questions. We’re a phone call away. Or an email.

Are there any essential advisories that a witness should be given during an investigative interview?

Yes. First, every witness should be advised that employees who bring a complaint or participate in an investigative interview are protected from retaliation under the employer’s policies and the law, and that retaliatory behavior should be reported if it occurs. Second, witnesses should be told that although they are not under oath, they are expected to answer questions truthfully. Third, consideration should be given to whether the employee should receive a confidentiality admonition.

What confidentiality admonition should be given to the witnesses?

Private sector employers must consider the ruling by the National Labor Relations Board (NLRB) in Banner Health System, Case 28–CA–023438 (July 30, 2012). Public sector employers must consider the ruling by the Public Employment Relations Board (PERB) in Los Angeles Community College District, PERB Decision No. 2404-E (2014). The NLRB held that an employer’s efforts to protect the integrity of its internal investigations by instructing witnesses to retain confidentiality violates an employee’s right to engage in protected concerted activity. Thus, investigators can no longer issue “blanket” confidentiality admonitions to witnesses in a private sector investigation.

In order to issue a confidentiality admonition, an employer must show that it has a legitimate business justification that outweighs an employee’s rights to engage in protected concerted activity. To justify an admonition, an employer is required to make an individualized assessment of each investigation to determine whether:

Any witnesses need protection,

Evidence is in danger of being destroyed,

Testimony is in danger of being fabricated, or

There is a need to prevent a cover-up.

How much does it cost to outsource an investigation?

The cost of an investigation depends, of course, on a number of factors. Van Dermyden Maddux provides an estimated cost proposal early on in the process, based on information known at that time. Cost proposals take into account the scope of the investigation (number of complainants, allegations, witnesses, documents); the seriousness of the allegations (interim action considerations, law enforcement concerns, threat assessment experts, media coverage); report requirements (comprehensive report, executive summary, summary of findings to parties, recommendations); and, other costs unique to the investigation.

What are some of the common mistakes that workplace investigators make?

It is a mistake for an investigator to conclude that there was a violation of law rather than company policy. If the investigator’s report concludes that the accused engaged in disability harassment in violation of the law, for example, the report could be construed as an admission of liability if the matter proceeds to litigation. By contrast, if the investigator concludes that the accused engaged in disability harassment in violation of the company’s stricter policies prohibiting such conduct, the employer can take corrective action without fearing an admission that it violated the law.

Another mistake is the failure to properly handle reports of potential violence. Some witnesses complain – “I am afraid to talk to you” – simply because they are nervous about the investigative interview. But a seasoned investigator will explore further to find out whether the witness is concerned about personal safety or threats of violence. Even if a complaint is dismissed for lack of merit, an experienced investigator will communicate the concerns of potential violence so an appropriate assessment can be made. As for actual threats – “he told me he had a gun” – the investigator must take swift action to make sure that proper organizational representatives are notified so they can take appropriate steps to ensure a safe workplace.

What information should a workplace investigative report provide?

First, the client determines the scope (not the method or findings) of the investigation, which in turn impacts the scope of what the report should include. Depending on the scope of the investigation, the report can answer the following questions:

Did the alleged conduct, more likely than not, occur?

Did the alleged conduct, more likely than not, occur because of an improper motive?

Was there a violation of the employer’s policies?

This requires the investigator to analyze all the available facts to reach a reasoned conclusion. By answering these questions, the decision-makers have a basis for making sound employment decisions.